E 

OFTEXAS 

MAY 8, 1959 

Honorable Don Kennard, Chairman 

Public Health Committee 

House of Representatives 

Austin, Texas 

Opinion No. W-622 

Re: Constitutionality of 

Dear Mr. Kennard: House Bill No. 50. 

You have requested an opinion from this office concerning four questions in regard to House Bill No. 50. The 

~flrst of these questions is: 

“Is House Bill 50 which requires labeling 

of milk with the minimum milk fat or butterfat 

content a reasonable exercise of the police 

powers of this State and, therefore, constitutional?” 

It has been generally held that the courts will not , 

invalidate a statute where the exercise of the power of the 

Legislature bears a reasonable relation to a legitimate purpose. The test which has been applied In determining the 

validity within the police power, is whether the ends sought 

to be attained are appropriate and the regulations prescribed 

are reasonable. The courts have further held that the measure 

of reasonableness of a police regulation is what Is fairly 

appropriate to Its purpose under all circumstances, and not 

necessarily what Is best. The test of reasonableness is 

whether the attempted regulation makes efficient constitutional 

guarantees and conserves rights, or is distructive of Inherent 

rights. The presumption is in favor of the reasonableness and 

validltv of the law. and to .lustiPy Interference, excessive 

1905); Reel v. Texas 

Tex.Civ.App. 195 

& Refining Co. I 1 
Honorable Don Kennard, page 2 (WW-622) 

Federation of Labor v. Mann, 188 S.W.2d 276 (Tex.Civ.App. 1945). 

In 16 Corpus Juris Secundum 951, Sec. 198, It is 

stated: 

I, 

. . . All matters relating to the policy, 

wisdom, or expediency of particular regulations 

under the police power are exclusively or primarily for legislative, rather than judicial, 

determination, and the determination of the 

legislature in this regard will not be disturbed 

by the courts, ,unless such regulation has no 

relation to the ends for which the police power 

exists. Moreover, courts generally are indisposed to suffer the police power to be impaired 

or defeated by- constitutional llmltatlons. 

"When, therefore, a subject lies within the 

police power of the state, debatable questions 

as to reasonableness are not for the courts but 

for the legislature, which Is entitled to form its 

own judgment; and its action within its range of 

discretion cannot be set aside because compliance 

lb burdensome. . . ." (Citing authorities) 

In applying the test that the courts have used In 

determining the validity of a statute within the police power 

of the state, we find that the purpose stated In House Bill 

50 Is to require the labeling of the minimum percentage of 

milk fat or butterfat content of all milk produced, offered 

for sale, or sold in this state. 

Article 165-3, Vernon's Civil Statutes of Texas, 

provides for a system of grading of milk and milk products 

in Texas and labeling such milk in the classifications of 

either A, B, C, or D, as the State Health Officer shall 

determine and he shall base same on the specifications set 

forth In the current United States Public Health Service 

Milk Ordinance. The courts of this state have upheld the 

validity of Article 165-3, Revised Civil Statutes, in Prescott 

v.- City of Borger 

238 S.W.2d 559, a;d Falfurrias Creamery Company v. C Y 

158 S.W.2d’578; Port Arthur v. Ca;rt;ofn Co., 

Laredo. 276 S.W.2d 351. 

Both House Bill 50 and Article 165-3, Revised Civil 

Statutes, define milk: 
Honorable Don Kennard, page 3 (W-622) 

II 

. 0 .to be the lacteal secretion obtalnfd by the complete milking of one or more 

healthy cows, . . . which contains not less 

than eight percent (8%) of milk solids-notfat, and not less than three and one-fourth 

percent (34) of milk fat.” 

House Bill 50 seeks to go one step further than 

Article 165-3 by requiring that each container of milk list the 

minimum percentage of milk fat br butterfat content of such 

milk therein. 

It is our opinion that the Legislature has the right 

to protect the public by guaranteeing to the purchasers of 

milk for consumption, that they are receiving that quality of 

milk they are paying for and that this requirement is not an 

unreasonable exercise of the State’s police powers. 

Section 6 of House Bill 50, states as follows: 

“Any person violating any provision of this 

Act shall be flned by the Department In the sum 

of not less than Twenty-five ( 25.00) Dollars nor 

moSe than Two Hundred ($200.00 Dollars and each 

separate violation shall constitute a separate 

offense.” (Emphasis added) 

Section 1 of Article II of the Texas Constitution, 

provides that: 

“The powers of the Government of the State 

of Texas shall be divided Into three distinct 

departments, each of which shall be confided to 

a separate body of magistracy, to wit: Those 

which are Legislative to one; those which are 

Executive to another, and those which are 

Judicial to another; and no person, or collection 

of persons, being of one of these departments, shall 

exercise any power properly attached to either of 

the others h except in the instances nereln expressly 

permitted. 

Section 19 of Article V of the Texas Constitution, 

provides in part: 

“Justices of the peace shall have jurisdiction 

In criminal matters of.ail c&ties where ‘the 

penalty or fine to be imposed by law may not be more 
Honorable Don Kennard, page 4 (WW-622) 

than for two hundred dollars, . . .' 

The State Department of Public Health has no 

constitutional authority to impose a criminal penalty of 

this kind as it Is not a Court and to give them such 

authority by the legislature would be in violation of the 

above quoted constitutional provision. 

It Is, therefore, our opinion that the answer to 

your first question Is that House Bill 50 is not an unreasonable exercise of the police powers of this State and is, 

therefore, constitutional, with the exception that Section 6 

above quoted is unconstitutional for the resons stated. 

Your second question Is: 

wTo what extent would House Bill 50, if enacted 

into law, conflict with existing law, particularly 

Article 165-3, V.C.S., relating to the labeling 

of milk and milk products? In this connection 

your attention Is Invited to that provision of the 

proposed bill which states that It Is to be 

'cumulative' of other laws.' 

Volume 10, Words and Phrases Permanent Edition, page 

653, defines the term "cumulative": 

0 

. . . indicates a harmonious coexistence 

and cooperation rather than a consolidation of 

two things into one." State v. Laredo 

Ice Co., 73 S.W. 951, g$~‘%‘Tex. 461. 

Article 165-3, Vernon's Civil Statutes gives the 

State Health Officer the authority to fix the speciflcatons 

for grading milk in the State and establishing the rules by 

which any person, firm, association or corporation desiring 

to use any of these grades in representing, publishing or 

advertising any milk product offered for sale. House Bill 50 

provides for the labeling of the minimum percentage of milk 

;;ieor butterfat content of all milk produced, offered for 

or sold in glass bottles within this State with certain 

excebtions. 

In our opinion there Is no conflict between the two 

and House Bill 50 would be "cumulative" of ai1 other laws. 

Your third question Is: 
Honorable Don Kennard, page 5 (~~-622) 

"Does the language contained in Sections 

2, 3 and 4 pertaining to th= label Containing 

'the minimum percentage of milk fat or butterfat content of such milk' mean (a) that the 

minimum percentage of milk fat allowed by law 

for such milk in the particular container is 

to be on the label thereof; or-(b) that the 

milk fat content of such milTIn that particular container must be on the label thereof? 

Furthermore, would not the ambiguity, conflic.ts 

and uncertainlty of these provisions result 

in repeal by implication the present statutes?" 

Both Article 165-3, Revised Civil Statutes and 

House Bill 50 define the minimum percentage of milk fat 

allowed by law in this State. In our opinion House Bill 50 

does not intend to diminish nor to restrict the milk fat 

or butterfat content below the minimum standard required by 

Article 165-3, but provides that whatever statement Is used 

on these containers must state the minimum percentage of milk 

fat or butterfat content of the milk in the aontainer. 

It is, therefore, our opinion that "the milk fat 

content of such milk in that particular container must be 

on the label thereof". 

Your fourth question is: 

"What regulatory agency would enforce the 

provisions of House Bill 50 if It Is enacted 

into law?" 

In the event that the words "by the department" are 

deleted from Section 6, it will be the duty of the District 

or the County Attorney In the County where an offense against 

the Penal Laws occurs, to prosecute the violator or violators 

In a court of competent jurisdiction. 

It Is our opinion that the State Department of 

Public Health would be charged with the duty of lnvestigatlon to see that the provisions of this Act are enforced 

and to file the necessary complaints against those who 

would violate its provlslons. 

SUMMARY 

1. House Bill 50, which would require 

labeling of milk with the minimum milk fat 
- . 

Honorable Don Eennard page 6 (WI?-622) 

or butterfat content, IS reasonable exercise 

of the police powers of this State and is 

constitutional. However, Section 6 of House 

Bill 50 which authorizes the Department to 

impose a fine on a violator Is unconstitutional for stated reasons. 

2. House Bill 50 would be "cumulative" 

of other laws, particularly Article 165-3 

Revised Civil Statutes. 

3. The language contained in Sections 

2, 3 and 4 of House Bill 50 pertaining to the 

label containing "the minimum percentage of 

milk fat or butterfat content of such milk" 

means that the milk fat content of such 

milk in that particular container must be 

on the label thereof. 

4. The District or the County Attorney 

would enforce the provisions of House Bill 50 

if It Is enacted into law, and the State 

Department of Public Health would be charged 

with the duty of investigation to see that 

the provisions are not violated. 

Yours very truly, 

LFP:sd 

APPROVED: 

OPINION COMMITTEE 

Geo. P. Blackburn, Chairman 

L. P. Lollar 

Leonard Passmore 

Joe Allen Osborn 

James Daniel McKeithan 

Tom I. McFarllng 

REVIEWED FOR THE ATTORNEY 

GENERAL 

BY: W. V. Geppert.